Palash Sarkar vs State of West Bengal and Others

D.P. Kundu, J.—This writ proceeding has been initiated by Shri Palash Sarkar (hereinafter referred to as Palash). inter alia, praying for an order in the nature of mandamus (a) by directing the respondents to show-cause as to why the order dated 17.4.2001 passed by this Court in W. P. No. 5402 (W) of 2001 should not be cancelled and/or reviewed and (b) by commanding the respondents to show cause as to why Palash shall not be impleaded in the writ petition being No. W. P. 5402(W) of 2001 filed by one Gopal Sinha (hereinafter referred to as the Gopal) for rehearing the whole matter. From the pleadings made in the writ application it is evident that the present writ proceeding has been initiated consequent upon an order dated 08.10.2001 passed by Barin Ghosh, J. in W. P. No. 14488 (W) of 2001. Palash instituted the aforesaid writ proceeding being W.P. No. 14488(W) of 2001 wherein Gopal was respondent No. 6. The order dated 08.10.2001 passed by Barin Ghosh, J., in W. P. No. 14488 (W) of 2001 is set out hereunder:

"8.10.2001 The petitioner is one of the sponsored candidates. When he appeared at the interview, he found that the son of the most influencial person in the locality, i.e., the son of the President of the Managing Committee of the School, who happens to be the Assistant Inspector of the School of the locality, was also a candidate for the self-same post and though he was not sponsored but despite that he had been permitted to appear at the interview. Subsequent to the interview, the petitioner has been able to ascertain that the said son has been shown to have topped the panel with the sole object of giving the appointment to him. The petitioner has thus challenged preparation of such panel with such a person on the ground that such a person could not be permitted to appear at the interview in view of the Special Bench Judgment of this Court. This writ petition is being moved upon notice to that person who has topped the panel and who happens to be the respondent No. 6 herein. The learned Counsel for the respondent No. 6, has produced an order passed on 17th April, 2001, by D. P. Kuridu, J. whereby and under the learned Judge directed the Secretary of the School concerned to allow the respondent No. 6 herein. The learned Counsel for the respondent No. 6, has produced an order passed on 17th April, 2001, by D. P. Kundu, J. whereby and under the learned Judge directed the Secretary of the School concerned to allow the respondent No. 6 to appear before the Selection Committee for interview with a further direction upon the Selection Committee to consider the respondent No. 6 along with other eligible candidates with a further direction upon the Selection Committee not to discriminate the petitioner. The seed of nepotism in appointment is ingrained and blessed by this court. However, since such an order is in existence, I cannot touch it at all. But. at the same lime. I permit the petitioner to apply for review of that order dated 17th April, 2001 by a fresh writ petition in terms of the Judgment of Supreme Court reported in Shivdeo Singh and Others Vs. State of Punjab and Others, .

This writ petition is, thus, disposed of.

Let an urgent xerox certified copy of this order, if applied for, be delivered to the learned Counsel, for the petitioner".

(emphasis supplied)

As a Coordinate Bench made serious and strong remarks like the seed of nepotism in appointment is ingrained and blessed by this court" (emphasis added) I wanted to examine the matter with all seriousness that it deserves.

On 22.5.2002 in the present writ proceeding I passed the following order.

"Learned advocate for the respondent No. 6 submits that he desires to file affidavit in opposition within two weeks after the summer vacation. The learned advocate appearing for the applicant has no objection if such prayer'' is allowed.

Under the circumstances respondent No. 6 and other respondents are directed to file affidavit in opposition within two weeks alter the Summer Vacation, reply thereto, if any, be filed which one week thereafter and the matter stand adjourned till three weeks after the Summer Vacation as Specially Fixed and the same shall appear at the top of the list irrespective of any other matter.

There shall be an interim order to the effect that if any action is taken in the meantime, in respect of the respondent No. 6, the same shall abide by the decision in this writ application.

Learned advocate appearing on behalf of respondent No. 6 undertakes to file his power in course of tomorrow."

After I passed my order dated 22.5.2002 I read the entire record of the present writ proceeding in my Chamber at this Court premises and I found it necessary that the records of W. P. No. 14488(W) of 2001 and W. P. No. 5402(W) of 2001 should be requisitioned and accordingly on my direction my court Officer on 22.5.2002 requisitioned the records of the aforesaid two matters.

On 24.5.2002 in the present writ proceeding I passed the following order.

''After I passed my order dated 22.5.2002, I read the entire record of this case in my chamber of the court premises and I found it necessary that the records of W. P. No. 14488(W) of 2001 and W. P. No. 5402(W) of 2001 should be requisitioned and accordingly on my direction, my Court Officer on 22.5.2002 requisitioned the records of the aforesaid two matters. The records of the aforesaid two records are now tying in this court. The matter has appeared in the list today under the heading "To be mentioned" under my direction.

I direct both the writ petitioner and the respondent No. 6 to produce before this court the original xerox certified copy of my order dated 17.4.2001 passed in W. P. 5402(W) of 2001 on the next date positively without any fail. It is made clear that if they fail to produce the original xerox certified copy of my order dated 17.4.2001 passed in W. P. 5402(W) of 2001, an adverse inference will be drawn against them.

In view of the seriousness and urgency in the matter, I prepone the data of hearing of this matter.

My earlier order dated 22.5.2002 is modified as follows :

The respondent No. 6 and other respondents are directed to file their respective affidavit in opposition on 11.6.2002, reply thereto, if any. be filed within 17.6.2002 and the matter shall appear on 18.6.2002 at the top of the list irrespective of any other matter.

The records of W. P. No. 5402(W) of 2001 and W.P. No. 14488(W) of 2001 should be kept with the Registrar (Administration) under the sealed cover and the records of the aforesaid two matters should be produced before this court on the next date, i.e. 18.6.2002 under the sealed cover.

Registrar (Administration) is directed to submit a report on 18.6.2002 indicating whether the records of W. P. No. 5402(W) of 2001 was requisitioned by any court on or before 8.10.2001. Such report should be submitted before this court positively on 18.6.2002."

On 8.7.2002, in W. P. No. 831(W) of 20021 passed the following order:

Affidavit-in-reply filed in Court be kept with the record.

Today on my direction, the learned Advocate for respondent No. 6 Mr. Rezaul Hossain has produced the original certified copy of the order dated 17.4.2001 in W. P. 5402(W)/2001 before me. After perusing the said xerox certified copy of the said order prima facie I am of the view that the order has been tampered with.

Accordingly. I direct the Deputy Commissioner Detective Department of Calcutta Police to make an investigation into the matter after inspecting the original documents in the record and if necessary with the help of the Forensic Department regarding alleged tampering of the said document.

The xerox certified copy of the order dated 17.4.2001 in original in W. P. 5402(W)/2001 as produced before me by the learned Advocate, Mr. Rezual Hossain be kept in a sealed cover under the custody of Registrar, Administration. High Court. Appellate Side. Registrar, Administration is directed to take necessary steps immediately in accordance with the order passed today and inform the D.C.D.D. for compliance of the order immediately. D.C.. D.D. is directed to submit a report in court after necessary investigation within 2 weeks from today. For the purpose of investigation by the D.C, D.D. as directed by me. the original records which are kept in a sealed cover with the Registrar, Administration may be opened in the presence of Registrar. Administration and thereafter such records should be once again be sealed in a cover and be kept in the custody of Registrar. Administration until further orders.

There shall be an interim order restraining Shri Gopal Sinha. Respondent No. 6 from functioning as clerk of Plassey Mira Balika Vidyaniketan, P.O. Plassey, P.S. Kaligunga. District Nadia from today until further orders.

The matter stands adjourned for a period of 2 weeks and thereafter appear in the list as specially fixed matter.

After the order has been passed today Mr. Kamalesh Bhattacharji. Learned Advocate appearing for Respondent No. 6 with Mr. Razaul

Hossain seeks permission of the court to be released. from his appearance in this matter any further on behalf of Respondent No. 6 on the ground that Mr. Bhattacharya has appeared in the matter only today. Upon such prayer, Shri Kamalesh Bhattacharji, learned Advocate is released from this matter on behalf of Respondent No. 6.

The learned Advocate for the petitioner as also other parties are directed to take down gist of the order and communicate the same to the Respondents and the Respondents are directed to act upon such communication.

Registrar, Administration is also directed to act upon such order."

Pursuant to my above order dated 8.7.2002 the questioned document was examined by the expert and opinion of the expert was submitted before the court and on 22.7.2002, I passed the following order:

"Today when the matter was called on the Registrar (Administration), A.S., produced one sealed cover containing the records of W.P. No. 831 (W) of 2002, W. P. No. 14488(W) of 2001 and W.P. No. 5402(W) of 2001 which were kept in sealed cover in the custody of the Registrar (Administration), A.S.. The sealed cover is opened in the presence of the Registrar (Administration), A.S.. The Registrar (Administration), A.S. also produced a sealed cover containing (1) the report of the D.C.D.D. dated 19.7.2002. (2) Original xerox certified copy of the order dated 17.4.2001 passed in W.P. No. 5402(W) of 2001 and (3) original opinion of the expert vide No. 1601/02. The sealed cover is opened.

In his report dated 19.7.2002 the D.C.D.D., Kolkata Police, inter alia, stated as follows :

In compliance with Lordship''s order dated 8.7.2002 directing to make an investigation into the matter of alleged interpolation/tampering in the portion of the order dt. 17.4.01 passed in connection with W.P. 5402(W) 2001. most humbly I am to submit before your Lordship that an enquiry was held and at the time of enquiry the O.D. Expert Dr. S.K. Mondal of State Forensic Science Laboratory, Belgachia visited the Hon''ble High Court and inspected the original record at the Chamber of Hon''ble Registar Administration on 17.7.02.

In course of enquiry the questioned document i.e., the original certified xerox copy of the order dt. 17.04.01 have been sent to the Experts for obtaining their valued opinion and the Expert vide their report No. 1601 dt. 19.7.02 has submitted his valued opinion which may kindly be perused. Dr. S. K. Mondal, Expert in his report has opined that ''No sign of tampering was detected in the region of disputed typed matters''. The original certified xerox copy of order dated 17.04.01 passed by the Hon''ble Mr. Justice D. P. Kundu is also returned herewith.

This report is bonafide and placed before your Lordship''s kind perusal."

The original opinion of the Expert vide No. 1601/02, inter alia, reads as follows:

The disputed xeroxed typed matters reading "or any other subsequent date" available on a certified copy marked Q1 were examined in this laboratory with the aid of physical appliances and the findings, thereof were as follows :

I. The xeroxed certified copy was relatively faint at places where hand writings in blue ink were present. No sign of tampering was detected in the region of ''disputed typed matters marked Q1 when- submitted to examination under microscope.

II. Faint invisible lines of pen through mark at Q1 were found to be present when submitted to examination under different sources of light.

III. Hand writings in blue ink e.g. "to" and "who" present in the original order at different places were found to be faint in certified xeroxed copy of the said order.

Arrangements may please be made to take back the exhibit from this laboratory."

Thus it is apparent from the opinion of the Expert that faint invisible lines of pen through mark at Q1 were found to be present when submitted to examination under different sources of light. The D.C.D.D., Kolkata Police is once again directed to get the original xerox certified copy of the order dated 17.4.2001 passed in W. P. No. 5402(W) of 2001 examined by an expert superior to the expert who has already submitted the report and give his valued opinion recording whether the pen through lines at Q1 in the original xerox certified copy of the order dated 17.4.2001 were made invisible by taking recourse to any external material like eraser or other materials. In other words the question which falls for determination by the expert is whether the lines of pen through mark at Q1 were originally there in the original xerox certified copy of the order dated 17.4.2001 and thereafter by using external aids those lines were made invisible or "faint invisible".

The opinion of the expert should be submitted before this court through D.C.D.D., Kolkata Police on 14th August, 2002. The expert is also directed to see the original order dated 17.4.2001 passed by me in W. P. No. 5402(W) of 2001 in the Court premises in the presence of the Registrar (Administration), A.S.. The expert should give his opinion whether the original xerox certified copy of the order dated 17.4.2001 issued by this court was tampered with by erasing or making faintly invisible the lines of pen through mark at Q1.

(1) The report of the D.C.D.D., Kolkata Police dated 19.7.2002,

(2) original xerox certified copy of the order dated 17.4.2001 and

(3) original opinion of the expert vide No. 1601/2002 are kept in the sealed cover in the custody of the Registrar (Administration), A.S.. for further investigation. The report submitted by the Registrar (Administration), A.S. dated 20.7.2002 is also kept in a separate envelope in the custody of the Registrar (Administration), A.S.. The records of (1) W.P. No. 831(W) of 2002, (2) W.P. No. 14488(W) of 2001 and (3) W.P. No. 5402(W) of 2001 are also kept in the sealed cover in the custody of Registrar (Administration), A.S..

The Registrar (Administration), A.S. is directed to take immediate action to comply this order."

On 14.8.2002 the matter was again taken up for hearing. A report dated 6.8.2002 by the Dy. Commissioner of Police, Detective Department. Kolkata in a sealed cover was produced before me. The sealed cover was opened in the Court. The relevant part of the report submitted by the Dy. Commissioner of Police, Detective Department, Kolkata reads as follows :

"In compliance with Lordship''s order dated 22.07.2002 directing to arrange further examination of the questioned document by an Expert superior to the person who has already submitted the report and give his valued opinion vide Report No. 1601 F.S.L. dt. 19.7.2002. This is to submit before your Lordship that the Deputy Director S.F.S.L., Belgachia was contacted at his office with a requisition for holding further examination of the questioned documents by an expert superior to the Senior Scientific Officer, but it could be ascertained that no other Superior expert, ranking higher than Dr. S. K. Mondal (Senior Scientific Officer) does exist in the Questioned Documents Section of S.F.S.L. and as such further examination of the documents have been refused by the concerned agency in writing.

Hence the original xerox certified copy of the order dt. 17.04.01 passed in connection with 5402 (W) of 2001 is returned herewith in sealed envelope along with the report dt. 06.08.2001.

This report is bonafide and placed before your Lordship''s kind perusal."

(1) The original report of D.C.D.D. dated 6.8.2002 is kept with the record. (2) The report of the D.C.D.D. dated 19.7.2002 is also kept in record. (3) Report No. 1601 dated 19.7.2002 of the Expert Dr. S.K. Mondal, Senior Scientific Officer, Questioned Documents Section, Forensic Science Laboratory, Govt, of West Bengal, Kolkata is also kept on record. (4) The report of the Registrar (Administration) dated 20.07.02 is also kept on record. (5) Original xerox certified copy which was examined by the Export is also kept on record.

Shri A. B. Chatterjee, Learned Senior Counsel for Palash argued that one post of Group-''C'' clerk in Plassey Mira Balika Vidyaniketan (hereinafter referred to as the said School) had fallen vacant and Palash was sponsored by Employment Exchange for the purpose of interview for the said post of clerk. The interview was held on 10.9.01. Shri Chatterjee argued that on 10.9.01 Gopal was not eligible to appear before the Selection Board for interview for the aforesaid post of clerk in the said school because he was neither sponsored by the Employment Exchange nor this court by its order dated 17.4.01 passed in W.P. No. 5402(W) of 2001 allowed Gopal to appear before the Selection Board for an interview held on 10.9.2001.

At this stage it will be useful to refer to the order passed by me on 17.4.2001 in W.P. No. 5402(W) of 2001. I purposely place hereinbelow the xerox copy of the order dated 17.4.2001 passed by me in W.P. No. 5402(W) of 2001. for proper appreciation of the matter.-

Mr. Rezaul Hossain for the.... Petitioner.

Affidavit of service filed be kept with record.

Heard the Learned Advocate for the parties and perused the averment made in the writ application. I dispose of the writ application by the following orders.

I direct the respondent No. 3. The Secretary Plassay Mira Balika Vidyaniketan, District-Nadia to allow the petitioner to appear before the selection committee for interview, for the rest of group ''C'' (Clerk), which will be held on 29.4.2001. The selection committee is further directed to consider the case of the petitioner alongwith other eligible candidates. No discrimination should be prepared in accordance with merit. The Learned Advocate for the petitioner is directed to take down the gist of the order for communication to the respondent No. 3 who is directed to act on such communication. In these terms the writ application is disposed of.

Shri A. B. Chatterjee argued that the words "or any other subsequent date" were pen through by the Judge by way of correction and in the margin the Judge put his signature as mark of correction made by him. Shri A. B. Chatterjee argued that fraud was committed in respect of the xerox certified copy of the order dated 17.4.2001. Shri Chatterjee argued that the xerox certified copy was tampered within a way so that it appears that the words "or any other subsequent date" were not pen through. Shri Chatterjee argued thus a fraud was committed which vitiates the selection of Gopal because Gopal was not entitled to appear before the Selection which was held on 10.9.2001. Shri Chatterjee argued that selection of Gopal by the Selection Committee, appearance of Gopal before the Selection Committee for interview and appointment of Gopal as clerk of the said school were vitiated by fraud.

Shri Chatterjee on behalf of Palash argued that Palash can prefer application for review and in this connection Shri Chatterjee referred to and relied upon a decision of Supreme Court in Shivdeo Singh and Others Vs. State of Punjab and Others, . Sri Chatterjee also referred to and relied upon a decision of Full Bench of this High Court in Srimanta Kumar Mandal & Ors. vs. The State of West Bengal & Ors. reported at 1998 (11) CHN 276. In paragraph-46 of this decision in Srimanta Mondal (supra) it was held by the Full Bench that a fresh writ application at the instance of a third party to review the order passed by the Court is maintainable in terms of Article 226 of the constitution of India. The Full Bench referred to and relied upon decision of Supreme Court is Shivdeo Singh (supra).

A five-Judge Bench of Supreme Court in Shivdeo Singh (supra), in paragraph-8 of the reported decision, inter alia, held as follows:

"It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it."

(emphasis added)

Admittedly on the day when I passed the order dated 17th April, 2001 in W.P. No. 5402(W) of 2001 Palash was neither a necessity nor a proper party, therefore, there was no question of making him a party. No order was passed to his prejudice or detriment. In W.P. No. 5402(W) of 2001 the interest of Palash was not sought to be affected by the order passed by me on 17.4.2001. I. inter alia, directed The panel should be prepared in accordance with merit." It is now well settled that selection should be made on the basis of merit.

In Halsbury''s Laws of England (4th Edn., Vol. 10, para 713) it is stated thus:

The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and super intendancy in certain (lasses of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action."

The above quoted paragraph from Halsbury''s Laws of England was approved and made applicable in India. In paragraph 15 of the reported decision in M.M. Thomas Vs. State of Kerala and Another, a two-Judge Bench of Supreme Court held "Though the above reference is to English courts the principle would squarely apply to the superior courts in India also."

The above quoted principle laid down in Halsbury''s Laws of England was also considered by a nine Judge Bench of Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, . Gajendragadkar, C.J. speaking for the majority, in paragraph - 60 of the reported decision, inter alia, held as follows :

There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Article 215 shall have all powers of such a Court of record including the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this court in Special Reference No. 1 of 1964, 1965 1 SCR 413 at p. 499. In that case, it was urged before this court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument this court observed that in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a Court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. That is why this court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this court cited a passage from Halsbury''s Laws of England where it is observed that-

"Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court."

If the decision of a superior court on a question of its jurisdiction is erroneous, it can. of course, be corrected by appeal or revision as may be permissible under the law; but until the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this court."

A two-Judge Bench of Supreme Court in M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, , in paragraph 67 of the reported decision, inter alia, held as follows:

The High Court in India are superior courts of record. They have original and appellate jurisdiction. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers. (See Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, )."

In M. M. Thomas (supra) it was held that unless the law confers power of review the inferior courts and tribunal as cannot exercise any such power of review. Power of review conferred on the Supreme Court under Article 135 of the Constitution is not specifically made applicable to the High Courts. Under these circumstances the question "Does it mean that the High Court has no power to correct its own orders, even if the High Court is satisfied that there is error apparent on the face of the record ?" fell for consideration in M. M. Thomas (Supra). In para-14 of the reported decision in M.M. Thomas (Supra), Supreme Court held as follows:

The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep an its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High court''s power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this court has recognised the aforesaid superior status of the High Court of plenary jurisdiction being a court of record."

In paragraph-17 of the reported decision in M. M. Thomas (supra),. Supreme Court held as follows :

"If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to review relating to errors apparent on the face of record."

Therefore, I have to see whether there was any miscarriage of justice or palpable errors in my order dated 17.4.2001 passed in W.P. No. 5402(W) of 2001. If I find that there was no miscarriage of justice or palpable error or error apparent on the face of the record then I cannot exercise power of review because power of review can be exercised only under those circumstances and not at the whims of the court.

When a court wrongly records a fact then that is error in fact. What is an error of law apparent on the fact of the record? This question was answered by Supreme Court in M/s. Bharat Barrel and Drum Mfg. Co. vs. L.K. Bose and Ors. reported at AIR 1967 SC 371. In paragraph-13 of the reported decision Supreme Court, inter alia, held as follows:

The question is what is an error of law apparent on the record. In AIR 1923 66 (Privy Council) ). Lord Dunedin observed that an error on the face of an award means that the court must first find whether there is any legal proposition which is the basis of such an award He also said that where an award is challenged upon such a ground it is not permissible to read words into it or to draw inferences and the award or the order must be taken as it stands. Tucker, J. said the same thing in James Clerk (Brush Materials) Ltd. vs. Carters (Merchants) Ltd., 1944 1 KB 566."

(emphasis added)

In Rohtas Industries Ltd. and Another Vs. Rohtas Industries Staff Union and Others, a three-Judge Bench of Supreme Court in paragraph-14 of the reported in held as follows :

"In one of the leading English cases AIR 1923 66 (Privy Council) ) followed in India. Lord Dunedin defined ''error of law on the face of the award'' as ''where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award'' and said that then only the error of law therein would warrant judicial correction. The law Lord expressed himself lucently when he stated :

"An error in law on the face of the award means, in their Lordships'' view, that you can find in the award.. some legal proposition which is the basis of the award and which you can then say is erroneous."

William J., in the case Hodgkinsons vs. Feraie, (1857) 3 CB(NS) 189 hit the nail on the head by using the telling test as firmly established, viz., ''where the question of law necessarily arises on the face of the award.'' In this view the enquiry by the court before venturing to interfere is to ascertain whether an erroneous legal proposition is the basis of the award. Nay, still less. Does a question of law (not even a proposition of law) necessarily arise on the award followed by a flaw some finding explicit or visibly implicit? Then the court can correct."

(emphasis added)

In Union of India (UOI) and Others Vs. N. Hargopal and Others, it was held that the contention that excluding the candidates who were not sponsored through medium of employment exchange and restricting, the choice of selection to the candidates sponsored through medium of employment exchange, would offend the equality clause of Articles 14 and 16 and it was not open to the Government to impose restriction on the field of choice was attractive. It was held that in view of the fact that even the paper publication would not reach many a handicapped who would be unable to have access to the newspaper, sponsorship though the medium of employment exchange would not violate Articles 14 and 16. It was further held that it would advance the rights to the handicapped and the court upheld the restriction imposed by the State and Central Governments to consider the cases of the candidates through the medium of employment exchange while holding that such a restriction was not intended to be applicable to a private employment. In Union of India vs. N. Hargopal (supra) the judgment was rendered by a two-Judge Bench of Supreme Court.

In Excise Superintendent Malkapatnam, Krishna District, A.P. Vs. K.B.N. Visweshwara Rao and Others, , a three Judge Bench of Supreme Court was considering Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. In Excise Supdt. Malkapatnam (supra) Supreme Court considered the decision of Union of India vs. N. Hargopal (supra). In Excise Supdt. Malkapatnam (supra) in paragraph-6 of the reported Decision it was held as follows :

Having regard to the respective contentions, we are of the view that contention of the respondents is more acceptable'' which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."

In Raj Kumar and Others Vs. Shakti Raj and Others, a Bench of three-Judge of Supreme Court considered Excise Supdt, Malkapatnam vs. K.B.N. Visweshwara (supra) and in paragraph-15 of the reported decision, inter alia, held as follows:

Therefore the Government hereafter should strictly follow the procedure by not only calling their names from the employment exchange, but also by publishing in the local and national newspapers and giving wide publicity in the media as well as getting the written examination and the interview conducted by the SSSB; marks should be awarded strictly according to the procedure."

Both Union of India vs. N. Hargopal (supra) and Excise Supdt. Malkapatnam vs. K.B.N. Visweshwara Rao (supra) were considered by a Special Bench of this High Court in Debasis Dutta vs. State of West Bengal reported at 1998 (2) CLJ 1. In Debasis Dutta (supra) the writ petitioner was a graduate and qualified for being appointed in the post of Clerk in High School. He also got his name registered with the local Employment Exchange. The petitioner came to learn that the school authorities of Burdwan Town High School were proceeding to fill up the post and called the candidates for interview for the said purpose. The writ petitioner had been excluded from being granted an interview. It was contended on behalf of the writ petitioner relying upon Excise Supdt. Malkapatnam vs. K.B.N. Visweshwara Rao (supra) that principle of fair play, justice and equal opportunity demands that apart from intimating the Employment Exchange in terms of the Employment Exchanges (Compulsory Notification and. Vacancies) Act, 1959 all the eligible candidates should be allowed to take part in the interview. The Special Bench in paragraph 17 of the reported decision observed as follows:

"Furthermore, the petitioner has got himself registered in the Employment Exchange. It is not his case that the names of such persons who were registered in the Employment Exchange after the petitioner, were sponsored. It is also not the case of the writ petitioner that the Employment Exchange has committed any illegality in sponsoring the names of the candidates or his name has wrongly been excluded from the list of eligible candidates. In this view of the matter we are of the opinion that anybody and everybody cannot approach this court and pray for issuance of writ of mandamus directing the Managing Committee of School to allow him to appear in the interview."

In Debasis Dutta (supra) Special Bench in paragraph-33 of the reported decision recorded its view which is set out hereunder :

"Having considered the submission of learned Counsels for the parties we are of the view:

The recruitment Rules although contained directory provisions, the same are required to be substantially complied with.

Any deviation and departure from the directions issued by the Director of School Education by reason of the said recruitment Rules can only be made by the Director of School Education himself or by the State Government by issuing an order or a direction or guideline depending upon the facts and circumstances of each case.

The Managing Committee of the respondent school is bound to follow the provisions of the recruitment Rules and the petitioners having not raised the question of constitutionality of the said rules in the writ application cannot be permitted to do so by way of argument.

No direction can be issued by this court upon the Managing Committee of the School to allow any and every person to appear in the interview although his name has not been sponsored by the Employment Exchange. The orders issued in this behalf by some of the benches of this Court do not lay down the correct law and must be overruled.

The Managing Committee cannot act in contravention of the said provision unless the same is unconstitutional. This court in exercise of its power under Article 226 of the Constitution of India cannot also issue a direction asking it to violate the provision of statute."

In Debasis Dutta (supra) Special Bench of this High Court did not consider Rajkumar vs. Shakti Raj (supra).

In Bhaskar Raiyati Ghosh vs. Kamal Sen reported at 2000 (2) CHN 246 it was argued before (he Division Bench of this High Court that according to the procedure prescribed for recruitment of teaching and non-teaching staff of Secondary Schools as contained in the recruitment procedure issued by the Director of School Education Government of West Bengal, vide Memo No. 2816(17) G.A., dated 4th December, 1989. it was only those candidates whose names were sponsored by the concerned Employment Exchange who could be considered for filling up the vacancy for which prior permission had been given by the District Inspector of Schools. It was contended that since the name of the writ petitioner had not been sponsored by the Employment Exchange, he could not be considered for appointment in the vacant post and the learned Single Judge erred in directing that in future if the school wanted to fill up any vacancy in the Class-IV group it should also consider the writ petitioner''s case for the said post. In Bhaskar Ranjan Ghosh (supra) Court referred to Excise Supdt.. Malkapatnam (supra). Union of India vs. Hargopal (supra) and in paragraphs 8. 9, 10. 11 and 12. inter alia, held as follows :

"8. We have carefully considered the submissions made on behalf of the respective parties and we see no reason to interfere with the order passed by the learned Single Judge."

"9. Admittedly, the school had published an advertisement inviting applications for filling up a vacancy in the class-IV group and the petitioner had applied in response thereto but no further steps were taken by the school authorities pursuant to such advertisement, and, on the other hand, in 1998 fresh names were called for from the Employment Exchange. In such circumstances, the learned Single Judge had directed the school authorities to consider the petitioner''s case, along with other eligible candidates, for filling up any future vacancy in the school in the class-IV category."

"10. In this connection it may be noted that then Hon''ble Supreme Court also had occasion to consider a similar question in Union of India (UOI) and Others Vs. N. Hargopal and Others, ) wherein while considering the provisions of Section 4 of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. it was observed that the Act did not cast any obligation on the employer to employ only those persons whose names are sponsored by the Employment Exchange, although, an obligation was cast on the employer to notify the vacancies to the Employment Exchanges. It was also held that while the Government was entitled to issue instructions that no merely vacancies should be notified to the Employment exchanges but that they should also be filled up by the candidates sponsored by such exchanges through its own department, subject to constitutional provisions or the provisions of any statute, such instructions would not bind the other bodies which were created by statute or functioned under the authority of a statute."

"11. The aforesaid view was considerably altered in the subsequent decision of the Hon''ble Supreme Court in Excise Superintendent, Malkapatnam vs. Viswashuwara Rao, 1996(6) SCC 2161, wherein it was directed that in addition to names being sponsored by the Employment Exchange, the appropriate department or under-taking or establishment should call for names by publication in Newspapers having wide circulation and also display on their office Notice Board or announce on radio, television and employment news bulletins and then consider the cases of all the candidates who apply. The aforesaid view was not interfered with by the Hon''ble Supreme Court in subsequent cases, and, on the other hand, appears to have been endorsed in the case of Raj Kumar and Others Vs. Shakti Raj and Others, "

"12. In that view of the matter, we see no reason to entertain the appeal and to interfere with the order of the learned Single Judge. The applications for leave to appeal and for condonation of the delay in filing the appeal are dismissed."

In Bhaskar Ranjan Ghosh (supra) the Division Bench did not consider Debasis Dutta (supra).

In Basavaraj R. Patil and Ors. v. The State of Karnataka, 2001 SCC 87. the question arose for consideration before Supreme Court was whether the Division Bench of Calcutta High Court was Justified in annulling the recruitment in favour of the appellant on the sole ground that in the absence of any sponsoring by the Employment Exchange, the appellant before Supreme Court could not have at all been considered for the post in question. The learned Single Judge of Calcutta High Court by orders dated 16.11.98 and 19.12.98 directed the authorities concerned to consider the case of the present appellant as well as the respondent No. 7 in interview notwithstanding the fact that their names had not been sponsored by the Employment Exchange. It was held by Supreme Court that the view of the learned Single Judge cannot be said to be erroneous. The relevant fines of the reported decision in Kishore K Pati (supra) read as follows:

This view of the learned. Single Judge cannot be said to be erroneous."

(emphasis added)

In Abani Mohato vs. Kanchan K. Sinha & Ors. reported at (2000) 9 527 attention of Supreme Court was drawn to the legal decision of the Supreme Court in Abani Mahato (supra), inter alia, stated as follows:

"Learned counsel for the appellant has drawn our attention to the legal decision of this court in Kishore K. Pari v. District Inspector of Schools, Midnapore dated 10.1.2000 in which it has been held that it was not necessary that the name should have been "sponsored by the employment exchange."

(emphasis added)

Thus from Abani Mahato (supra) it is evident that Supreme Court also understood that in Kishore K. Rati (Supra) it was held by Supreme Court that it was not necessary that the name should have been sponsored by the Employment Exchange.

In Suganthi Swesh Kumar vs. Jagadeeshan reported at AIR 2002 SCW 298, Supreme Court in para-9 of reported decision held as follows:

"It is impermissible for the High Court lo overrule the decision of the Apex Court on the ground that Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India. It is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this court in Aral Kumar Neotia vs. Union of India, AIR 1988 SC 13S2 that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court."

In Kishore K. Pati (supra) the learned Single Judge of this High Court directed the authorities concerned to consider the case of the appellant and respondent No. 7 in Kishore K. Pali (supra) in interview notwithstanding the fact that their names had not been sponsored by the Employment Exchange. Supreme Court held that the view of the learned Single Judge cannot be said to be erroneous. Therefore. Supreme Court held and laid down that court can direct the concerned authorities to consider the case of persons in interview notwithstanding the fact that their names have not been sponsored by the Employment Exchange. It is impermissible for the High Court to question the correctness of the decision of Supreme Court in Kishore K. Pati (supra) on the ground that Debasis Datta (supra) was not considered by Supreme Court. In case of any conflict, views of Supreme Court shall prevail over those of the High Court.

In Prahlad Majhi vs. State of West Bengal & Ors. reported at 2001 (1) CHN 229 a Single Bench of this High Court considered the decision in Abani Mahato (supra), Kishore K. Pati (supra) Debasis Datta (supra) and Excise Supdi. Malkapatnam (supra). In Prahlad Majhi (supra) the writ petitioner stated that his name was sponsored by the Employment Exchange for a Group-''D'' post in a school and after interview he came out successful as the second candidate in the merit list. The first candidates in the merit list was not sponsored by the Employment Exchange but was interviewed on the basis of an order from the High Court upon a writ petition.. It was contended that the first candidate in the merit list was not eligible as he was not sponsored by the Employment Exchange. Single Bench after considering Abani Mahato (supra), Kishore K. Pati (supra), Debasis Dutta (supra) and Excise Supdt., Malkapatnam (supra) in paragraphs 13, 14, 15 and 16 of the reported decision, inter alia, held as follows :

"13. Both the Supreme Court decisions are related to an appointment under the same recruitment rules which are prevailing in the instant two writ petitions. The Supreme Court did not make any- distinction while applying the Excise Superintendent''s case as has been done by our Special Bench. However, the learned advocate for the writ petitioners contended that the decision in Debasish Dutta (supra) was not placed before the Hon''ble Supreme Court of India."

"14. Be that as it may, from the tenor of the two Supreme Court judgments it is absolutely clear that the decision in Debasish Dutta had virtually been overruled by the Apex Court by implication."

"15. Since the subsequent two Supreme Court decisions had overruled the three bench decision in Debasish Dutta I did not feel it necessary to discuss the Division Bench judgment in the case of Bhaskar Ranjan Ghosh (supra)."

"16. In the result I hold that since the respondent No. 6 had been allowed to participate in the interview pursuant to the direction of this court, his case should be considered for appointment, if he is otherwise found eligible."

In Kishore K. Pati (supra). Supreme Court rendered the decision on 10.1.2000. In Abani Mahato (supra), Supreme Court rendered the decision on 17.4.2001, just one year after the decision of Supreme Court in Abani Mahato (supra).

In view of the discussions made hereinabove, reading my order dated 17.4.2001 passed in W. P. No. 5402(W) of 2001 it is not possible to say that the legal position which is the basis of the order is erroneous and that there is an error of law apparent on the record. No error of fact has been brought to the notice. Therefore, I am of the view that it is not possible to review my order dated 17.4.2001 passed in W. P. No. 5402(W) of 2001.

In the matter of selection the Selection Authority be it a selection committee or any other body of persons or any person making such selection, should ensure fairness in the selection process. Every step taken in the matter of selection should be above board and transparent. Selection should be made without aversion or affection. Nothing should be suggestive of discrimination. In the. selection making process nothing should be done which gives an impression of bias, jobbery, favouritism or nepotism. The word "nepotism" means

"The bestowal of patronage by public officers in appointing others to offices or positions by reason of their blood or marital relationship to the appointing authority, rather than because of the merit or ability of the appointee." (See-66. Corpus Juris Secundum, page-6).

Nepotism vitiates every selection. Selection by practising nepotism is antithesis of fair selection on the basis of merit or ability. Any selection which is tainted by nepotism is arbitrary and therefore, it is discriminatory and violates Article-14 of the Constitution of India if such selection relates to a State within the meaning of Article-12 of the Constitution. In other cases it is unfair, unjust and bad in law. Nepotism goes to the root of the matter and vitiates the selection. Nepotism is an extreme abuse of power in bad faith. A selection which is tainted by nepotism is null and void. The maxim "Nemo sibi esse judex vel suis jus dicere debet" means no man ought to be his own judge, or to administer justice in cases where his relations are concerned (See - Black''s Law Dictionary Sixth Edition, Centennial Edition, page-1039). In my view this maxim applies also in administrative matters like selection. In my view relations like parents and children, brothers and brothers, brothers and sisters, sisters and sisters, in-laws and in-laws are covered by this maxim. However, I have mentioned the above relations as illustration. If the degree of relationship is too remote and there is ''no reasonable likelihood of bias then the maxim shall have no application. Reasonable likelihood of bias, should be tested on the touchstone of conflict between interest and duty taking into consideration human probabilities in the ordinary course of human conduct.

In Dr (Mrs) Kirti Deshmankar Vs. Union of India (UOI) and Others, the appellant and respondent No. 5 along with others were candidates for admission to the post-Graduate Course in Obstetrics and Gynecology in the G. R. Medical college, Gwalior. They had duly passed the MBBS examination and satisfied the other essential conditions for admission. The selection of the candidates was made on the basis of their relative merit and respondent 5 was selected as the last candidate in the list of the successful applicants. The appellant was placed on the top of the waiting list and was admitted for the Diploma Course. She challenged the admission of respondent No. 5. Before Supreme Court the learned Advocate for the appellant pressed that the selection of respondent No. 5 by the College and Hospital Council was vitiated on account of participation of the respondent''s mother-in-law as a member. Dealing with the point raised by the learned Advocate for the appellant Supreme Court in paragraph-6 of the reported decision held as follows:

The first argument of the learned counsel for the appellant is well founded Dr. (Mrs.) P. Oliyai was, without any doubt, vitally interested in the admission of her daughter-in-law and her presence in the meeting of the Council must be held to have vitiated the selection of respondent 5 for admission. As was observed in A.K. Kraipak vs. Union of India there was a conflict between her interest and duty and taking into consideration human probabilities in the ordinary course of human conduct, there was reasonable ground for pleading that she was likely to have been biased. In the Kraipak case the person concerned was the Acting Chief Conservator of Forests who did not participate in some of the deliberations of the Selection Board, but the fact that he was a member of the Board and that he participated in the preparation of list were held to have necessarily caused an impact on the selection, as the Board must have given weight to his opinion. In that case the other members of the Board had filed affidavits stating that the Acting Chief Conservator had in no manner influenced their decision, but this was not considered sufficient to save the selection. The principle has been followed in numerous cases including in Ashok Kumar Yadav vs. State of Haryana where it was emphasised that it was not necessary to establish bias and that it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. It is regrettable that in spite of repeated reminders by the courts of law, the College and Hospital Council constituted by a number of highly educated persons and headed by the Dean himself did not pay any heed. It was expected of Dr. (Mrs.) Oliyai to dissociate from the Council instead of espousing the case of her daughter-in-law and in any event it was the bounden duty of the Dean to have seen that Dr. Oliyai did so before proceeding with the selection process. We, accordingly hold that the selection of respondent 5 for admission to the Post Graduate Course was vitiated in law."

In Jaswant Singh Nerwal vs. State of Punjab, reported at 1991 (1) SCC 313 it was held that it is not unusual for candidates related to members of the Service Commission and Selection Committee to seek employment. In such a situation the practice generally in vogue is for: the member concerned to excuse himself when the particular candidate, is interviewed and such a selection is beyond challenge, unless, of course, male fide.

In Rasmiranjan Das Vs. Sarojkanta Behera and Others, the degree of relationship between the appellant and the member of the Selection Committee was remote by six degrees. Therefore, it was held that the appellant could not be considered a near relation of the member of the Selection Committee. Paragraph-2 of the reported decision is set out hereunder:

"The High Court has set aside the selection of the appellant to the post of clerk in Sailo Gram Panchayat High School only on the ground that out of live members of the Selection Committee, one of the members was related to the appellant. The State has filed an affidavit setting out that the selection was properly made after a written test and an interview. Rule 3(1) of the Orissa Education (Establishment Recognition & Management of Private High Schools) Rules. 1991 prohibits participation in selection by a near relation of any candidate. In the present case, the degree of relationship between the appellant and the member of the Selection Committee is remote by six degrees. Therefore, the appellant cannot be considered a near relation of the member of the Selection Committee. Since this is the sole ground for setting aside the selection by the High Court, we set aside the order of the High Court".

In Krishan Yadav and another Vs. State of Haryana and others, the appellants were unsuccessful candidates in a selection of Taxation Inspectors by the Subordinate Selection Board. The Board issued an advertisement on 22.11.1986 inviting applications for Taxation Inspectors. In response to the advertisement man candidates applied but for some reason the written test could not be conducted. The Board again advertised for the very same number of posts of Taxation Inspectors on 7.7.1988. It was mentioned in the advertisement that those candidates who had earlier applied against Board''s advertisement and were eligible according to the prescribed qualifications need not apply again. The previous applications would be considered for these posts. The Board conducted the written Examination at various centers in the State of Haryana. On receipt of the answer books from different centers a key book was not prepared by the Secretary of the Board with the help of the confidential branch. Fictitious roll numbers were allotted to each candidate in the Key book by removing original roll number slips. Thereafter, the answer books were sent to different examiners for evaluation. After examining the answer books, the examiners were required to prepare an award list which is a summary indicating the fictitious roll number of the candidates and the marks obtained by them in each subject were entered in the key book. On the basis of the key book award lists and answer books, the result of the written test was prepared by the Board. Thereafter the same was published by displaying it on the Notice Board. Any candidate who desired to get his answer book re-checked could do so within a period of 30 days from the declaration of the result of written test only after depositing the prescribed fee.. Such procedure was indicated in the rules. This was also the practice prevalent in the Board. However, strangely the interviews were directed to take place on 3.10.1989 after the expiry of only 17 days. The interviews were held in three different centers. Therefore, three Interview Committee had to be constituted. Each Committee consisted of two Board Members and one Advisor from Excise and Taxation Department. The interviews went on till 12.10.89. About 200 candidates were to be interviewed by each Committee on each day. The appellants claimed that their performance in the interviews was excellent. Therefore, if judged on- the basis of the written test and performance of the interview that who ought to have been selected on the basis of merit. Originally, one Anand Singh Dangi was the Chairman of the Board. He resigned. After his resignation a new Chairman in his place was appointed by the State Government After the appointment of the new Chairman on the next day the selection list for the post in question was finalized. That list was sent to the Department secretly. At this stage it will be useful to set out paragraph-8 of the reported decision in Krishan Yadav (supra) herein below:

"Originally, Respondent 4, Anand Singh Dangi was the Chairman of the Board. He resigned. After his resignation a new Chairman in his place was appointed by the State Government. After the appointment of the new Chairman on the next day the selection list for the post in question was finalized. That list was sent to the Department secretly. This was in clear violation of the norms which requires publication on the Notice Board so that it could be made known to the public. The selection list was kept a highly secret document. The same was sent to the second respondent (the Excise and Taxation Commissioner) by hand. Appointment letters were issued after calling the selected candidates. Joining reports from all the selected candidates were obtained in Chandigarh on the spot. Some of them were shown to have joined the respective place of posting. No medical examination for selected candidates was conducted nor were their antecedents got verified before actual appointment. This will clearly establish that favouritism nepotism. unfairness and a good deal of political influence played a vital role in this selection disregarding merit altogether".

It is also necessary to refer to paragraphs 17. 18. 19 and 20 of the reported decision in Krishan Yadav (supra) which is set out herein below:

"17. It may not be too much to draw an inference that all these were motivated by extraneous considerations. Otherwise, how does one account for selection without interview, fake and ghost interviews, tampering with the final records, fabricating documents, forgery? Each of this would attract the penal provisions of Indian Penal Code. They have been done with impunity."

"18. The story does not end here. From out of the "selection list" secret communications have been sent to the candidates. Selections were made without medical test or verification of antecedents."

"19. It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trusts. Such officers are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It is somewhat surprising the High Court should have taken the path of least resistance stating, in view of the destruction of records, that it was helpless. It should have helped itself. Law is not that powerless."

"20. In the above circumstances, what are we to do ? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalized for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as "fraud unravels everything". To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors".

Palash in his writ petition stated that the selection was held on 10.9.01 and Palash appeared before the Selection Committee on 10.9.01 and it is also the case of Palash that Gopal and other candidates appeared before the Selection Committee for interview on 10.9.01. It has been alleged in the writ petition that Palash performed well in the interview and he "came to know from the reliable source that your petitioner stood first in the panel" but again after three or four days of the date of interview Palash came to know that he was placed in the second position of the panel which was mysterious to every body. It has been alleged in the writ petition that Gopal is the son of Assistant Inspector of Schools, Nadia as well as the President of the Managing Committee (as Government nominee) of the said school and applying his direct influence Gopal''s father got Gopal placed in the first position of the panel which was a grievous offence under law and for that reason the final panel prepared on 10.9.01 by the Selection Committee was malafide and improper. Admittedly Gopal''s father was not a member of the Selection Committee which took the interview of Palash, Gopal and other candidates. Director of School in exercise of the power conferred on him has laid down procedure for all appointments of teaching and non-teaching staff. According to the said procedure all appointments of teaching and non-teaching staff should be made by a Selection Committee. According to the procedure, President of the Managing Committees cannot be a member of the Selection Committee. Therefore, under no circumstance father of Gopal could have been a member of the Selection Committee and in fact, he was not a member of the Selection Committee. There is no allegation against the members of the Selection Committee. There is no allegation that the members of the Selection Committee were influenced by Gopal''s father. Under the circumstances, at the time of interview and selection there was no reasonable likelihood of bias. Members of the Selection Committee are not parties to this writ proceeding. The learned Advocate appearing for the State, at the time of argument, produced before this Court certain documents which are placed in the record. From the said documents it is evident that Gopal was placed at the top of the panel while Palash was placed at the second place. In absence of any allegation of mala fide against the members of the Selection Committee and in absence of any evidence in support of the allegation that Gopal''s father exercised his influence and got Gopal placed first in the panel, it is not possible to hold that any act of nepotism was practiced in this case. Nothing has been placed before this court or shown to this court which may even suggest that selection of Gopal securing No. 1 position in the panel is'' vitiated by bias, favouritism or nepotism.

If my order dated "17.4.01 passed in W.P. No. 5402(W) of 2001 is compared in naked eyes with the Xerox certified copy produced by the learned Advocate for Gopal then it is evident that the Xerox certified copy was tampered with. The lines of pen through mark in respect of words "or any other subsequent date" were made invisible by some process. When opinion of the expert was sought for Dr. S.K. Mondal, senior Scientific Officer, Q.D. Section, Forensic Science Laboratory, Government of West Bengal observed "faint invisible lines of pen through mark at Q1 were found to be present when submitted to examination under different sources of light." In the questioned document the words "or any other subsequent date" was marked as ''Q1'' by the expert. Under these circumstances I am of the view that the Xerox certified copy of my order dated 17.4.01 passed in W.P. No. 5402(W) of 20Q1 was tampered with. The said Xerox certified copy was tampered with an ill motive to get advantage and deceive others. Due to the said tampered Xerox certified copy the concerned authorities were led to believe that Gopal, under Court''s order, was entitled to appear for interview held on 19.9.2001. On the basis of such tamped document Gopal appeared before the Selection Committee for interview which was held on 10.9.01 when he was not entitled to appear before the Selection Committee because my order dated 17.4.2001 passed in W.P. No. 5402(W) of 2001 entitled Gopal to appear before the Selection Committee for interview for the post of Group-''C (clerk) scheduled o be held on 29.4.01 and not on any subsequent date. Therefore, I am of the view, Gopal by communicating tampered Xerox copy of my order dated 17-4-2001 in W.P. No. 5402(W) of 2001 appeared before the Selection Committee which vitiates the selection of Gopal by the Selection Committee and appointment of Gopal in the post of clerk of the said school. Production of tampered Xerox copy of my aforesaid order dated 17.4.2001 for the purpose of interview held on 10.9.2001 amounts to fraud.

On 14.8.2002, in course of his argument, the learned advocate for Gopal admitted that the Xerox certified copy of the order dated 17.4.01 which was submitted by him does not tally with the original order passed by this Court. The learned advocate for Gopal further submitted that the words "or any other subsequent date" which were pen through in the original order do not appear to be pen through in the Xerox certified copy of the order. The learned Advocate for Gopal admitted that this difference was made after obtaining the Xerox certified copy of the order dated 17.4.2001 and this difference amounts to fraud. The learned Advocate for Gopal tendered unconditional apology on his behalf as also on behalf of his client, Gopal. In this connection reference may be made to the order dated 14.8.2002 passed by me in the present writ proceeding which is set out hereunder :

"The records of the case along with the report of the D.C. (D-D.) has been produced before this court, in a sealed cover, by the Registrar (Administration). The sealed cover is opened in court today. The report is kept in the record.

Heard the learned Advocate for the petitioner.

The learned Advocate for the State in course of her argument has produced certain documents containing seven pages which are kept with the record.

Learned Advocate for the respondent No. 6 has submitted "The Xerox certified copy of the order dated 17.4.2001 which was submitted by me does not tally with the original order passed by this Court. The words ''or any other subsequent date'' were pen through in the original order do not appear to be pen through in the Xerox certified copy of the order. This difference amounts to fraud and this difference was made after obtaining the Xerox certified copy of the order dated 17-4-2001.

Learned Advocate for the respondent No. 6 has tendered unconditional apology on his behalf as also on behalf of his client.

Hearing concluded and C. A.V.".

In Lazarus Estates Ltd. vs. Beasley. (1956) 2 QB 702 at Pp. 712-13 Lord Denning, LJ. said:

"No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything".

See also, in Lazarus case at p. 722 per Lord Parker, C.J.:

"Fraud" vitiates all transactions known to the law of however high a degree of solemnity".

The principle laid down by Lord Denning, LJ. And Lord Parker, C.J. in Lazarus case (supra) was relied upon and referred to with approval by Supreme Court in S. Pratap Singh vs. State of Punjab, reported at AIR 1964 SC 733 and reiterated in Express Newspapers Pvt. Ltd. and Others Vs. Union of India (UOI) and Others, . Court cannot remain a silent spectator if and when an act of fraud comes to its notice in connection with a matter which is being heard by it. Court should pass appropriate order stripping the benefit unduly obtained due to such fraud.

In view of the discussions made hereinabove the selection of Gopal for the post of clerk in the said school and the appointment of Gopal in the said school as clerk is quashed and set aside because by committing fraud he appeared before the Selection Committee for interview which was held on 10.9.2001.

Gopal initiated another writ proceeding being W. P. No. 2276 of 2001 in the Original Side of this High Court. M.H.S. Ansari, J. by an order dated 24.12.2001 disposed of W. P. No. 2276 of 2001. The relevant part of the said order dated 24.12.2001 is set out herein below:

The Court : The only grievance of the petitioner in the instant writ application is as regards inaction on the part of the District Inspector of Schools (SE), Nadia, in keeping the panel dated 10-9-2001 for the post of clerk pending without passing any order thereon.

Learned counsel for the petitioner has placed before this court the Circular letter No. 1684-SE(S)/4A-JI/2001 dated 20th September, 2001 whereby the Special Secretary of the Government has informed the Director of School Education, inter alia, as under:

"After careful consideration, the Government in the School Education Department is pleased to permit the Director of School Education, West Bengal to fill up 329 (three hundred twenty-nine) vacant posts of clerk and 17 (seventeen) vacant posts of Librarian in recognized non-government aided institutions in West Bengal".

Learned Counsel for the petitioner relying upon the aforesaid contended that there is no embargo or any legal impediment for consideration of the panel which has been submitted by the School Authorities as far back as on September 10, 2001.

In such view of the matter, the instant writ application is being disposed of with a direction upon the District Inspector of Schools (SE) Nadia, the respondent No. 1 herein, to consider the said panel in accordance with law and to pass orders thereon within a period of 30 days from the date of communication of a copy of this order.

If, for any reason, the panel cannot be approved, reasons therefore shall be communicated to the School authorities within the stipulated period by registered post with Acknowledgement Due.

All parties are to act on a Xerox signed copy of this Dictated Order on the usual undertaking".

As the selection and appointment of Gopal is set aside and quashed, Palash being No. 2 in the panel should be appointed as clerk in the said school forthwith.

The law relating to judicial discipline in respect of Coordinate Bench is well settled. But sometimes the same is required to be restated. In Sub-Committee of Judicial Accountability Vs. Union of India and others, , a Bench of five-Judge of Supreme Court in para-5 of the reported decision, inter alia, held as follows:

"Indeed, no co-ordinate bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another co-ordinate bench".

(emphasis added)

This view of Supreme Court was again referred to and relied upon by a five-Judge Bench of Supreme Court in Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others, . In my opinion, judicial discipline which is applicable for Supreme Court is also applicable for High Courts.

In Vikramjit Singh Vs. State of Madhya Pradesh, , a Bench of two-Judge of Supreme Court was considering cancellation of bail by a co-ordinate bench of same High Court on no new or additional grounds. The appellant in that case was an accused in a murder case and after his prayer for bail was rejected by the trial Court he filed an application before the High Court which was dismissed with the observation that he could renew the prayer after the submission of the report by the police on completion of investigation. After the charge-sheet was filed in the case the appellant along with two oilier accused persons renewed the prayer before the Sessions Judge who again rejected the same. The appellant thereafter filed another petition before the High Court which was allowed by Mr. Justice B. C. Varma on 6.7.90 and the appellant was directed to be released on bail. Another accused, Dharmendra Kumar Sharma, thereafter, approached the High Court for bail which was placed before Mr. Justice G. C. Gupta who made an order in his favour by his judgment dated 8.9.90. but observed that the accused persons including Vikramjit Singh, the present appellant who had been earlier granted bail by the High Court did not deserve to be enlarged on bail and that it was "a fit case where the State should apply for cancellation of bail of all the accused persons". In view of this observation the State filed a petition for cancellation of the bail order passed by Mr. Justice B.C. Varma. In this application no additional fact was stated nor any allegation against the appellant was made which could be relevant for the prayer of cancellation of earlier bail order. The prayer for cancellation was Sounded on the observations in the order of Mr. Justice G.C. Gupta which was verbatim quoted in the petition. The application for cancellation of bail was listed before Mr. Justice Gupta, who. by the impugned judgment cancelled the earlier order of Mr. Justice B.C. Varma and while so doing made strong remarks against grant of bail in such cases. This order of cancellation was challenged before the Supreme Court A Bench of two-Judge of Supreme Court considered the matter and, inter alia, held-

"It appears that the learned Judge while passing the impugned order, failed to appreciate that no Bench, can comment on the functioning of a co-ordinate Bench of the same Court, much-less sit in judgment as an appellate Court, over its decision",

(emphasis added)

This decision of Supreme Court in Vikramjit Singh (supra) was referred to and relied upon by a Bench of two-Judge of Supreme Court in Harjeet Singh @ Seeta Vs. State of Punjab and Another, In para-8 of the reported decision in Harjeet Singh (supra) Supreme Court reiterated. It was not open to the other Judge of the High Court to sit in appeal against the order passed by Co-ordinate Bench of the same Court".

With reference to the serious and strong remarks like The seed of nepotism in appointment is ingrained and blessed by this Court" made by Barin Ghosh. J., in the order dated 8.10.2001 passed in W.P. No. 14488(W) of 2001, I make no comment whatsoever.

I direct Gopal, the respondent No. 6. should pay Rs. 5,100/- (Rupees five thousand one hundred) as costs which should be paid to Registrar General of this High Court within fourteen days from the date of this judgment and order.

The Registrar General of this High Court is directed to take immediate steps in accordance with law so that the wrong doers are identified and punished in accordance with law.

To sum up-(1) As there is no error apparent on the face of the record, review of my order dated 17-4-2001 passed in W. P. No. 5402(W) of 2001 is not necessary, (2) nothing has been shown to the Court which may even suggest that selection of Gopal securing No. 1 position in the panel is vitiated by bias, favouritism or nepotism, (3) I quash and set aside the selection and appointment of Gopal for and to the post of clerk in the said school because Gopal appeared before the Selection Committee for interview held on 10-9-2001 on the basis of a Xerox certified copy which was tampered with and thereby a fraud was committed. "Fraud unravels everything", (4) I direct that Palash, the writ petitioner, being No. 2 in the panel be appointed as clerk to the said school forthwith, (5) I direct Gopal, the respondent No. 6, to pay Rs. 5,100/- (Rupees five thousand one hundred) as costs which should be paid to the Registrar General of this High Court within fourteen days from the date of this judgment and order, (6) the Registrar General of this High Court is directed to take immediate steps in accordance with law so that the wrong doers are identified and punished in accordance with law. In these terms the writ application is disposed of.

Later on

Urgent Xerox certified copy of the judgment, if applied for by the parties, shall be supplied forthwith on usual terms.